| Del. | Oct 31, 1923
delivering the opinion of the court:
The question presented to the court, is whether the written agreement of the parties meant that the work should be completed in three months, or in the shortest time the builder could complete it by using every endeavor.
The question is not, whether there was a waiver of time limit, shown by the conduct of the defendant subsequent to the making of the contract, but what the intention of the parties was at the time of its execution respecting the time of performance.
Unquestionably it was the duty of the court to construe the contract, and instruct the jury as to its meaning. Manifestly the court below based its construction of the agreement on the language of Sections 4 and 13.
If such construction was correct, there is nothing further for this court to consider, because in such case there was no error in the court’s charge to the jury. Under such construction there was but one question of fact to be determined, viz.: whether the plaintiff had used its every endeavor to push the work to an early completion. That question was submitted to the jury under proper instructions. Does the contract, on its face, mean what the court below said it meant ? We are of the opinion that it does.
The essence of the contract in question, respecting time of performance, is, we think, expressed in Section 4, which provides, that the party of the first part shall use every endeavor to push the work to an early completion; and Section 13 was not a new and independent stipulation, but the expression of the thought or hope that the work could, if the builder used his every endeav- or, be completed in three months.
The parties may have thought that the work could be completed in three months if conditions respecting labor and materials were at all times favorable, and the thought that they might not be, was probably the reason for making the completion of the work dependent on the builder’s best endeavor.
Plaintiff in error insists that Section 13 contains the real agreement of the parties as to the time in which the work should be performed, and that Section 4, an earlier provision, was merely preliminary thereto. The contention is, that said section meant, that the work should be completed in three months, and such time was, therefore, of the essence of the contract. But Section 13 does not say the work shall be completed in three months. The most it says, is, that the parties saw no reason, when they made the contract, why it could not be completed in that time. That is very different from an undertaking or agreement that three months should be the limit of performance. The gist of the agreement was, that the builder should complete the work as soon as he possibly could, under the circumstances; the hope was, that it might be done in three months’ time or less.
While Section 13 is a later provision in the contract than Section 4, and might control if the two were clearly conflicting, there is, in the court’s opinion, no necessary conflict, because Section 13 contains no agreement that the work covered by the contract shall be completed in any definite or fixed time.
The judgment of the court below will be affirmed.